Lawmakers File TAB Newsroom Legislation

posted on 2.25.2019

A bipartisan group of lawmakers have now filed legislation comprising TAB’s primary newsroom legislative agenda for the 2019 session.

The package of House and Senate bills represents, for the most part, unfinished business from 2017 session.

The transparency-minded Texas Senate twice passed TAB’s measures to fix the loophole-ridden Texas Public Information Act, but the Texas House refused to take up the legislation because of opposition from big business.

The four priorities then and now are:

• Taxpayers have a right to view final government contracts with private companies
• Taxpayers have a right to know how non-profit entities essentially acting as an arm of the government are spending tax dollars
• Dates of birth contained in public records should, in most cases, be open to the public so that proper identity can be confirmed
• Public business conducted in private electronic accounts – already classified as a public record – must be publicly accessible

TAB is aligned with nearly 20 other organizations in the Texas Sunshine Coalition ( www.txsunshine.org , @TxSunshine19 , https://www.facebook.com/TXSunshine19/ ), a group working to pass these measures in the 86th Texas Legislature and seeking to address other Open Government concerns. 

The coalition includes the Texas Press Association and the Freedom of Information Foundation of Texas, as well as a diverse group of organizations ranging from the far-left to the far-right with a host of groups in between. 

The coalition runs the gamut from the American Civil Liberties Union to the Texas Public Policy Foundation.

The bills comprising the TAB legislative agenda include: 

Dates of Birth

HB 1655 by Rep. Todd Hunter, R-Corpus Christi

Journalists use DOBs to differentiate between two individuals with the same or similar names. 

The problem is a 2015 Third Court of Appeals decision, Paxton v. City of Dallas, that extended a common-law right of privacy to dates of birth of all Texans. 

The Court based its decision on an earlier Texas Supreme Court decision which held public employee dates of birth could be withheld from the public.  

As a result of the decision, some Texas police departments are now redacting DOBs from the “basic information” that must be released when an individual is arrested or charged, thereby creating liability issues for crime reporting.  

TAB is seeking a clarification in law that DOBs, unless statutorily or constitutionally protected, are subject to release. 

Custodian of Records

HB 1700 by Rep. Todd Hunter, R-Corpus Christi

TAB wants to clarify a 2013 law that said public business, even if it is conducted on private electronic devices or in private email accounts, is public record. 

The 2013 law essentially codified what the Texas Attorney General's office had been ruling for many years.  

Some public officials, however, are refusing to provide these materials to the governmental body to satisfy the requests for that information. 

This bill would amend the existing law by requiring a government officer or employee in possession of public records to hand that information over to the governmental body upon request. 

This marks the third time TAB and other Open Government groups have tried to get this measure passed.   

Government Contracting

SB 943 by Sen. Kirk Watson, D-Austin | HB 2189 by Rep. Giovanni Capriglione, R-Southlake

These House and Senate companion bills would address the damage done by two 2015 Texas Supreme Court decisions that have gutted the public’s ability to see how taxpayer dollars are spent.

The Texas Supreme Court’s Boeing v. Paxton decision said companies doing business with government could seek to have their contracts and other information in government custody withheld from the public based on a claim that releasing the documents would create a competitive disadvantage. 

Previously, only governments could assert the competitive bidding TPIA exception during the competitive bidding process. 

Furthermore, the companies have a very low bar for showing an alleged competitive disadvantage. In some cases, companies simply state that they have competitors, without providing any details. 

Even final contracts and the amount of taxpayer money spent can be kept from public view, as well as performance markers and other promises made to the community in order to get the contract.

In just under four years, there have been more than 2,700 rulings by the Attorney General’s Office in which some or all of the requested information has been kept hidden because of the Boeing ruling. The number is growing constantly. 

Some of these cases have involved school district food service contracts; government filings by taxi companies ride‐sharing companies; state‐mandated sports concussion research; and even the amount paid by the City of McAllen to singer Enrique Iglesias to perform in a holiday concert. 

Most Texas broadcast newsrooms have their own example of a TPIA request that has been denied based upon the Boeing decision.

In the Greater Houston Partnership v. Paxton ruling, the public’s right to know how non‐profit entities supported by public funds spend taxpayer money was limited by the court.

The justices overturned a test that had been used for more than 30 years in deciding whether such information should be released under the TPIA.

The Greater Houston Partnership, which performs economic development duties for the City of Houston, didn’t want taxpayers to see how it was spending their money.

Now other non‐profits relying on taxpayer dollars are closing off information, too.

TAB doesn’t want all non‐profits to be covered by the TPIA ‐ only the government‐funded portions of non‐profits that are supported by taxpayer dollars and perform traditional government duties.

Bill authors Sen. Kirk Watson, D-Austin, and Rep. Giovanni Capriglione, R-Southlake, have worked tirelessly with members of the Texas Sunshine Coalition and the business community to craft legislation that will restore a good deal of transparency to the TPIA.

HB 2189/SB 943 would create a new for exception for contractors' proprietary information to address some of the concerns raised by the business community.

However, the bill ensures that, even with the new exception, the public can obtain key contract terms (like overall price and deliverables) and information indicating whether a contractor performed its duties under the contract. 

HB 2189/SB 943 would also require specific contractors that are truly intertwined with government to respond to Texas Public Information Act requests those entities receive about their government work.  Importantly, these companion bills also require other contractors that receive large government contracts to maintain information about the contract and share it with the governmental body when the governmental body receives a TPIA request for that information.

Texas Public Information Act Omnibus

SB 944 by Sen. Kirk Watson, D-Austin | HB 2191 by Rep. Giovanni Capriglione, R-Southlake

These TPIA omnibus companion bills address several facets of how the TPIA functions.  

They contain elements of HB 1700 noted above, that address the so-called “custodian loophole” which has prevented newsrooms from getting records concerning public business that are in private email accounts or held on a private electronic device. 

These bills also direct the Texas Attorney General’s office to create a public information request form that could prove useful in speeding up responses to requests for certain types of information. 

To address concerns raised by the healthcare industry, the omnibus includes a TPIA exception to the release of individual patient records.

Want more information on these bills and story examples which illustrate these problem areas? 

Check out the Texas Sunshine Coalition website at https://txsunshine.org.

Other areas of concern

While not part of TAB’s official package of priority newsroom legislation, TAB and other Open Government groups are taking another crack at passage of legislation to address two other areas of concern after failing to enact measures in the 2017 session. 

TAB and others want to end the lamented practice by governmental bodies of needlessly sticking requestors with a hefty legal bill when seeking release of information. 

The 2017 fix was vetoed by Gov. Greg Abbott, but Open Government forces are hoping to change persuade Abbott otherwise this year.

Under current law, a court can assess litigation costs and reasonable attorney fees to a requestor if they substantially prevail in a lawsuit to force release of information.

In some cases, however, governmental bodies have disingenuously elected to release the information on the eve of trial, well after the requestor has spent tens of thousands of dollars in legal costs to win the information’s release

Watson and Capriglione have filed SB 988 and HB 2192 which say a court may not award litigation costs or attorney's fees to a plaintiff or defendant who substantially prevails "unless the court finds the action or the defense of the action was groundless in fact or law."

As TAB mentioned in the January 21st issue of the TABulletin, Rep. Joe Moody, D-El Paso, is taking another shot at passing a bill allowing more access to law enforcement information in cases in which the suspect or suspects involved died.  

Under Section 552.108 of the Texas Public Information Act, law enforcement materials do not have to be released if there is a pending investigation or unless there is a final court outcome. 

It is the most widely used exception in the act.

The problem encountered by newsrooms and the public is that there won’t be a final court outcome if a suspect in a case is deceased. 

Sometimes, in such instances, law enforcement also claims the investigation is ongoing even though the only suspect is dead. 

Moody’s 2017 bill died when lawmakers ran out of time for passage in the House of Representatives.

His 2019 proposal, HB 147, is moving much quicker out of the chute this time with its initial bill hearing slated for Feb. 27. 

Of course, TAB will be on guard for other attempts to further weaken the TPIA as well as undermine previously secured newsroom legislative gains such as the 2009 reporter shield law and the 2011 Citizen Participation Act, the state’s anti-SLAPP litigation law.

Questions? Contact TAB’s Michael Schneider or call (512) 322-9944.

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